The relation of the South to the Union became the subject of discussion with the first signs of Federal victory, and grew acute with the close of hostilities. If secession, as the Lincoln administration had claimed, was unconstitutional and the Southern states had never been out of the Union, it seemed logical for those states to resume their functions under the Constitution, by participating in Federal elections, by sending representatives to Congress, and by exercising other rights generally guaranteed to the states. Such a policy was in harmony with antebellum nationalism, and it was advocated by leading Southerners. But such a procedure did not harmonize with the new sense of nationality; it made no guarantee against another experiment in secession; and it might also restore to political authority in the South the very class that had been in power in 1860. For these reasons four contrary theories were evolved. They were given the names Presidential, State Suicide, Conquered Province, and Forfeited Rights. According to the Presidential theory, the Southern states, though they had never been out of the Union, no longer had constitutional governments. To establish such governments, representative in form and loyal to the Union, the President proposed to lend aid, and even to exercise a certain amount of control. This theory was formulated by Lincoln and was notable for its liberal conditions, which the Southerners might easily fulfil. Application was attempted in Louisiana, Arkansas, and Tennessee. But the Presidential plan was too lenient for the leaders of Congress, even under the stricter terms imposed by Andrew Johnson. Hence Charles Sumner advanced the theory of State Suicide. Although the states had not been out of the Union, the adoption of ordinances of
secession had caused them to commit felo de se, and they were, therefore, in the status of territories, for which Congress should prescribe rules and regulations. More extreme was the Conquered Province theory of Thaddeus Stevens, of Pennsylvania, which held that the states in question had lost all their rights under the Constitution, and were merely so much conquered territory, possessing only the rights they might claim under international law. Finally, by the Forfeited Rights theory, the states had never been out of the Union, but had forfeited certain rights under the Constitution, which could be restored only through the direction of Congress. These theories, the controversies, the violence, and the bitterness which developed over their adoption or rejection, were but the birth pangs of a new political and constitutional order. For the ultimate result, the theory of the Supreme Court in Texas vs. White is also pertinent; that the Constitution, in all its
provisions, looks to an indestructible Union, composed of indestructible states. The great monuments of the new sense of nationality, the thirteenth, fourteenth, and fifteenth amendments, likewise precipitated questions which have enriched legal literature. What is involuntary servitude? How inclusive are rights and liberties? What is due process of law? When does a state deny suffrage on the ground of race, colour, or previous condition of servitude?